Sixth Circuit Addresses 2014 BIA Precedent Decisions on Asylum

In an unpublished disposition, the Sixth Circuit addressed the impact on asylum law of the Board of Immigration Appeals' (Board) 2014 decisions in Matter of M-E-V-G- and Matter of W-G-R-. The court held that these decisions did not substantially alter the legal definition of a particular social group, and thus, they did not warrant reopening of proceedings. The court relied on the Board's statements that its case law never truly required a particular social group to be "ocularly visible," and downplayed the importance of the Board's recognition that its past cases were inconsistent on this issue.

This is a surprising and disappointing decision. The Board's 2014 decisions were intended to bring uniformity to the definition of a particular social group - by definition, they recognized a lack of uniformity in prior decisions. They also recognized that the same group may be socially distinct and particularized in one society, but not in another, and that the evidence in the record may support a finding of a cognizable particular social group in one case, but not support a finding of cognizability for the same group in a different case with a different evidentiary record. The Sixth Circuit's conclusion that the petitioner could not have reasonably believed before these decisions that he was not eligible for asylum (because his proposed group had been consistently rejected in prior cases), but after these decisions, believed he could present evidence of the social distinction and particularity of his proposed group in his society is flawed. It misses the point that under W-G-R- and M-E-V-G-, each proposed group must be evaluated based on the evidentiary record presented in that case.